New York Times Op-Ed on Future of FLSA: A Provocative Read

On June 24th, Jefferson Cowie wrote a provocative Op-Ed in the New York Times, “The of Future Fair Labor.” The article offers a fascinating perspective on the history and future of the Fair Labor Standards Act (FLSA). As attorneys who’ve helped thousands of people obtain fair treatment and redress wrongs done by means of New York Labor Laws and the Fair Labor Standards Act (FLSA), we found many of Mr. Cowie’s points resonant and thought provoking.

Mr. Cowie begins by pointing out that the Fair Labor Standards Act – signed into law in President Franklin Roosevelt’s administration – had its roots in helping to promote “rudimentary standards of decency.” The Act put an end to child labor, created a minimum wage, capped the official work week, and mandated overtime for additional labor worked.

Over the past seven and half decades, the FLSA has been one of the central guiding lights in labor law. The Equal Pay Act, signed by President Kennedy, amended the FLSA to ensure “equal pay for equal work” for women, minorities, and others.

Yet, as Mr. Cowie points out, the shifting landscape of American business has created new tensions and challenges. He states “lawsuits over back overtime pay resulting from misclassifications have gone through the roof.” We sympathize. Ideally, businesses would do the “right thing” and adhere to their obligations under the FLSA. Not that we want to put ourselves out of business, but it would be a great thing if institutions and businesses self-policed better and stopped stealing from their employees.

Mr. Cowie also worries about what he calls the “1099 economy” – a reference to the fact that many employers try to dodge their FLSA obligations by classifying laborers as independent contractors. He also jabs at the institution of the internship, which he argues is an “infamous classification hustle” that allows businesses to extract work from eager young people without paying them anything, capping their hours or providing benefits.

As Mr. Cowie points out, a backlash against the institution of the internship is brewing. Witness a recent Federal District Court decision against Fox Searchlight. The Court found that interns working on the 2010 movie “Black Swan” should have been paid. A similar suit was successful against the Charlie Rose show.

So how should the Fair Labor Standards Act be strengthened?

Mr. Cowie argues that the Federal Government should step in. The Obama Administration has earmarked $15 million to help enforce the Family Medical Leave Act (FMLA) and the FLSA, but “that’s not enough,” per Mr. Cowie. He offers several suggestions, but his main point – which we find compelling and moving – is that “Americans are drastically overworked and underpaid, compared to workers in other advanced countries, and our workers are trapped in a rigid pattern of inequality [not fitting for a] nation [premised on] upward mobility.”

If you or someone you love and care about has been struggling with an unfair workplace situation, the team here at Joseph & Kirschenbaum wants to know. Call us now at (212) 688-5640 or write to info@jhllp.com to schedule a free, through consultation with us.